When faced with a decision, if one alternative is likely to lead to bad results, a rational person would presumably hesitate before choosing that course of action. Thus, the bad consequences argument tends to have logical and intuitive appeal. Moreover, it is an easy argument to make. Decisions, especially legal decisions, generally do have consequences, and it will usually be difficult to determine exactly what they will be with any certainty. The future, by definition, is uncertain. And yet, it only takes a modicum of imagination to speculate about what very well might happen. The argument of bad consequences can be a powerful tool in the hands of the advocate because it tends to place the opponent in the uncomfortable position of attempting to refute the speculative state of affairs that presently exists only in the advocate's imagination.
Given the appeal of this argument, it is hardly surprising that it has been employed with great frequency by the Supreme Court of the United States from the earliest days and continues to play a significant role in contemporary constitutional interpretation. It has been utilized by the Court in many of its most memorable decisions including: Marbury v. Madison, McCulloch v. Maryland, Lochner v. New York, Youngstown Steel & Tube Co. v. Sawyer, New York Times Co. v. Sullivan, Mapp v. Ohio, Griswold v. Connecticut, Miranda v. Arizona, United States v. Nixon, Bakke v. Regents of the University of California, just to mention a few. Although bad consequences is an easy argument to make and a frequent argument made, it is not always a convincing argument. Nor is it necessarily a bad argument. To a large extent, it depends on the advocate's ability to persuade the reader that bad things are, in fact, likely to occur if a particular course of action is followed.
This article will examine several aspects of the bad consequences argument. First, it will briefly consider instances in which the bad consequences argument is employed as a means of bolstering some other form of constitutional argument. Next, it will examine the use of the bad consequences argument as a rhetorical device. Then it will consider the issue of whether there needs to be some showing that bad consequences will actually occur. Next, it will discuss cases in which the bad consequences in question are legal rules or doctrines which the Court itself has some ability to avoid. Finally, it will discuss constitutional boundary disputes in which the bad consequences argument has become something of a structural principle.
SMU Law Review
Lackland H. Bloom Jr., Bad Consequences, 55 SMU L. Rev. 69 (2002)